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Wednesday, April 04, 2018

Considering Texas DA primaries in light of new models out of Philly for prosecutors opposing mass incarceration

The March episode of the Reasonably Suspicious podcast we included an update on the March 6 primary elections involving Texas District Attorneys and the Court of Criminal Appeals. Then we compared so-called "progressive" District Attorney candidates in Dallas to Philadelphia's new DA, Larry Krasner, discussing a new memo Krasner put out directing his prosecutors to use their discretion to reduce mass incarceration. By contrast, Texas' "progressive" DAs and DA candidates are all much more moderate. I've excerpted those two segments here:

Scott Henson: Next up, let's update our coverage of District Attorney and Court of Criminal Appeals races in the March 6th primaries.

Mandy Marzullo: Texas' primary elections were held on March 6th. Six of the 12 elected district attorneys facing challengers were defeated. Of particular note, voters asked DA's Nico LaHood in San Antonia, Abel Reyna in Waco and Steve Tyler in Victoria based on campaigns against prosecutorial over-reach. In Dallas, Judge John Creuzot won a tight democratic primary against a candidate backed by national level progressive reformers.

Mandy Marzullo: Meanwhile, presiding Judge Sharon Keller narrowly won re-election to the Court of Criminal Appeals with just 52% of the vote. In a race to replace Elsa Alcala who is retiring, GOP voters selected Judge Michelle Slaughter of Galveston, a civil lawyer with backing from the pro-life end guns wing of the GOP base who defeated two criminal justice veterans with decades of experience. The Texas Tribune reported that she was "the only one of the three without a criminal appellate background having worked in civil law before becoming a judge." So Scott, which of these primary races stood out to you and what should we take from this round of elections?

Scott Henson: Well, I guess as far as standing out, the ones that I enjoyed the most were Abel Renya and Nico LaHood going down. I thought both of those were pretty well deserved. Abel Renya in Waco in particular really had just kind of made that county a laughingstock over the whole Twin Peaks biker shooting case. They will be paying for the aftermath of that case for years and years to come in civil suits and really just the chaos it's created in the court system there is almost unprecedented.

Scott Henson: Nico LaHood of course had alienated just about everybody he could think of before the voters finally ousted him. Then also I guess it's just impressive overall that there were 12 DAs statewide that had contested primaries, six of them overall lost, so we are in a period where those are not just safe incumbent seats automatically. People are losing those and we saw several people taken down this time that I think wouldn't necessarily have been expected just a year or two ago. People thought Abel Renya was pretty safe until all the Twin Peaks stuff just utterly devolved and all of a sudden he's gone.

Mandy Marzullo: Yeah. Well, in fairness the Twin Peaks case is a big deal. It wasn't just a small issue here and there. We're talking about dozens and dozens of people being incarcerated and no convictions two or three years later.

Scott Henson: That's right. That's right. He basically just screwed that case up in every way you possibly could and now they're all falling apart. He can't get the attorney general to take them. No one really knows how this is going to all play out because nothing quite this stupid has ever been done before.

Mandy Marzullo: On this magnitude.

Scott Henson: That's right.

Mandy Marzullo: This is a little bit of a deal. We're not talking about a small thing. We're talking about hundreds of people being rounded up. [Ed note: Actually, it was 177.]

Scott Henson: That's right.

Mandy Marzullo: In terms of races that I am looking at, I am particularly interested to see what will become of Michelle Slaughter because she really is an unknown entity. There's no history for us to go off of. It's hard to know where she'll be. We were talking about it earlier and I think you're right Scott that given her endorsements and her sort of political leanings, it could be that she is moderate on criminal justice issues.

Scott Henson: Right. A lot of Tea Party type folks are. It's really hard to say. It is disappointing, I guess, that it seems to be really hard for qualified candidates to get through the GOP primaries in these open races. We had the same situation in 2016 where the folks who on their face had overwhelmingly the best qualifications, the two candidates couldn't even make the run-off in the race to replace Cathy Cochran.

Scott Henson: Here now the one civil attorney defeating these two men with decades and decades of experience, I happen to prefer Jay Brandon over Dib Waldrip in that primary, but either man actually is eminently qualified for the spot. GOP voters don't seem to care about that. That doesn't mean Michelle Slaughter won't be a good judge. Nobody really knew who Scott Walker was when he was elected. He didn't even really run a campaign. He was elected because voters thought that he had, he had the same name as the very popular governor of Wisconsin, and so they pulled the lever for him. He turned out to be a fine judge and so that doesn't mean that Michelle Slaughter is not going to be a good judge once she gets on. It just means that qualifications don't mean much to GOP primary voters in these judicial races. They just don't. This is two primary cycles in a row that we've seen that to be the case.

Scott Henson: The Democratic primary for district attorney in Dallas turned into a debate over which candidate would be the more progressive prosecutor, a dynamic made even more odd by the fact that the candidates' positions on issues were essentially identical and overall quite moderate. By contrast, Philadelphia recently elected a man named Larry Krasner District Attorney, and he's launched sweeping changes in how prosecutors use their discretion which go far beyond anything undertaken by Texas so-called "progressive" prosecutors like Kim Ogg in Houston or Mark Gonzalez in Corpus Christi.

Scott Henson: Krasner issued a memo telling his assistant DAs to decline cases for low level pot possession and paraphernalia and offering plea bargains to the low end of their state sentencing guidelines as an opening offer. Just as important, Krasner directed prosecutors to describe the benefits of lower sentences on the record including how much cost savings tax payers will incur. So Mandy, do any current Texas DAs or DA candidates deserve the mantle progressive when compared to Larry Krasner? How would you describe the distinction between his approach and prosecutors in Texas?

Mandy Marzullo: All right. Well, so this is easy. No. I don't think we have a single DA in office that comes anywhere near Larry Krasner in terms of his progressive policies. It's because in Texas we see prosector tweaking their use of the prosecutorial power. They'll divert more cases. They'll not contest bail in certain circumstances, but we're not seeing anyone in Texas trying to use their authority as a prosecutor to challenge mass incarceration.

Mandy Marzullo: That's really where Larry is going with this is he's not only declining to prosecute some really I guess sort of crimes of poverty in a lot of ways, like prostitution, but he's also starting a dialogue about the utility and the public investment in incarcerating people.

Scott Henson: That's right, and he's also really furthering the dialogue that's begun in the past couple of years about prosecutor's role in mass incarceration. We've heard a lot, and this is partially why you saw so much national money put into the races and against Nico LaHood and the primary in Dallas is that there is this sense that prosecutors are central to mass incarceration so we have to start playing in that terrain.

Scott Henson: The problem has been nobody really had a model of what can a prosecutor do to reduce incarceration. Certainly none of our so-called progressive DAs in Texas or DA candidates have really even had any kind of plan to reduce mass incarceration whatsoever. It wasn't even something that they were pretending to be putting forward. There wasn't a benchmark out there to say okay, here's what could be done if someone really wanted to try.

Scott Henson: Well, now we do. I found myself wishing that this memo had come out maybe just a couple of months or three months ago so that, I know he just got in, but so that in this Dallas DA race where somehow this one candidate is more progressive than the other but they both have the same positions. Well, I would have loved to see them be asked, well, are you going to do these things? Are you going to use your discretion to offer plea bargains at lower levels and describe in detail how you're going to do that.

Scott Henson: We didn't have a framework to be even asking those questions and from now on we will. In that sense he's done a great mitzvah, that it's a great benefit just from that perspective alone moving that ball forward.

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